IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Titus Jones,

Case No. 2:11-cv-797

Plaintiff,

v.

Judge Graham

Antoinette (Jones) Swank, et al.,

Defendants.

OPINION AND ORDER

Plaintiff Titus Jones brings this civil rights action pro se under 42 U.S.C. § 1983 for malicious 

prosecution and for conspiracy to maliciously prosecute. The remaining defendants are the Franklin 

County Child Support Enforcement Agency, Susan Brown and Melissa Waterfield (the “Franklin 

County defendants”). Brown is the director of the Agency and, during the time at issue, Waterfield

was an attorney representing the Agency. Jones asserts that the Franklin County defendants 

deprived him of his constitutional rights by influencing or participating in a decision to prosecute 

him for failure to pay child support.

This matter is before the court on the Franklin County defendants’ motion for summary 

judgment. For the reasons stated below, the motion is granted.

I. Background

The complaint asserted numerous claims against multiple defendants. The court has 

dismissed the claims against all of the defendants except the Franklin County defendants, leaving 

claims against them under § 1983 for malicious prosecution and conspiracy to maliciously prosecute 

and state law claims for abuse of process, conspiracy and intentional infliction of emotional distress. 

See Sept. 18, 2012 Opinion and Order; Apr. 18, 2013 Opinion and Order.

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The remaining claims are related to the criminal indictment brought against Jones in the 

Franklin County Court of Common Pleas for failure to pay child support under Ohio Revised Code 

§ 2919.21. Jones was divorced in Lucas County in 1993 and ordered by the Lucas County Court of 

Common Pleas to pay child support for three minor children born in 1983, 1985 and 1988. Pl.’s 

Mem. Opp’n, Ex. B. The child support obligation for each child terminated when that child turned 

18 years of age. Id.

On July 30, 2009, a Franklin County grand jury indicted Jones on one count of failure to pay 

his child support obligation from January 12, 2004 to January 12, 2006 with respect to the child born 

in January 1988. See. Defs.’ Mot. Summ. J., Ex. A. Jones failed to appear on August 12, 2009 for 

his arraignment, was arrested on August 28, 2009 and released on bond on August 31, 2009. See

State v. Jones, No. 09CR 07 4571 (Franklin Cnty. Ct. C.P.). The case was dismissed on March 24, 

2010 nolle prosequi because Jones paid the child support at issue. Id.

As previous orders have noted, the complaint contains many legal conclusions but few 

factual allegations, making it difficult for the court to determine the basis of Jones’s claims. The 

complaint contains no factual allegations regarding Brown. As to the Agency, the complaint alleges 

that it failed to supervise and control the conduct of Waterfield. And as to Waterfield, the 

complaint alleges that she breached a “duty to ascertain the truth of the information” supplied to her 

about Jones before referring his case to the county prosecutor. Compl., p. 6, ¶ 24. The complaint 

alleges that Waterfield knew or should have known that there was not probable cause to support the 

charge against Jones.

It is unclear from the complaint what information allegedly supplied to Waterfield (or 

supplied by Waterfield to the prosecutor) was false or incomplete. The complaint alleges that 

Waterfield failed “to learn whether [ex-wife Antoinette Swank] was ordered to give companionship 

to the father by the Lucas County Court and whether there was an affair with cousins.” Compl., p. 

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6, ¶ 22. It not apparent what relevance those matters had to the non-support indictment. The 

complaint also alleges that Waterfield knew that Jones was in arrearage on his child support 

obligations. Compl., p. 9, ¶ b. This allegation seems to undercut the assertion that there was not

probable cause to support the indictment, as well as the assertion that Waterfield knew that probable

cause did not exist.

In their motion for summary judgment, the Franklin County defendants argue that no 

genuine issue of material fact exists and that they are entitled to judgment as a matter of law. They 

argue that the § 1983 malicious prosecution and conspiracy claims must fail because the grand jury’s 

indictment of Jones is prima facie evidence of probable cause to prosecute. They further argue that 

they are immune from liability for the state law claims under Ohio’s political subdivision immunity 

statute, O.R.C. § 2744.02.

In response to the motion for summary judgment, Jones alleges that defendants knew that 

information given to the grand jury was false and that they breached their duties to investigate. 1

 He 

contends that the arrearage for which he was indicted pertained to his adult children for whom his

child support obligation had been terminated under the court’s judgment entry of divorce in Lucas 

County. Additionally, Jones alleges that the notice of indictment was deliberately sent to an out-ofdate address so that he would not receive the notice, thereby leading to his arrest for failure to 

appear at the arraignment. Jones contends that the 4 days he spent imprisoned are the damages, 

including emotional distress, he suffered as a result of defendants’ wrongdoing.

II. Standard of Review 

A motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a) should 

not be granted unless “the movant shows that there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” The moving party bears the burden of 

 1 Jones’s factual allegations in his response brief are unsworn and not supported by any evidence.

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proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of 

law, which may be accomplished by demonstrating that the nonmoving party lacks evidence to 

support an essential element of its case on which it would bear the burden of proof at trial. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 

(6th Cir. 2005). If the nonmoving party is unable to establish an essential element of its case, there 

is no genuine dispute as to any material fact; lack of an essential element necessarily renders all other 

facts immaterial. See Celotex Corp., 477 U.S. at 323.

The “mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment; the requirement is that there be no 

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); see also Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). A 

dispute about a material fact is genuine only if based on evidence upon which a reasonable jury could 

find for the nonmovant. See Anderson, 477 U.S. at 248; Niemi v. NHK Spring Co., Ltd., 543 F.3d 

294, 298 (6th Cir. 2008). A fact is deemed material if it could affect the outcome of the suit under 

governing law. Anderson, 477 U.S. at 248. Accordingly, the nonmoving party must present 

“significant probative evidence” to demonstrate that “there is [more than] some metaphysical doubt 

as to the material facts.” Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).

A district court considering a motion for summary judgment may not weigh evidence or 

make credibility determinations. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008); 

Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994). Rather, in reviewing a motion for summary 

judgment, a court must determine whether “the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of 

law.” Anderson, 477 U.S. at 251-52. The facts presented must be weighed in the light most 

favorable to the nonmovant and all reasonable inferences must be considered in its favor. Am. Exp. 

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Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011); Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, “[t]he mere existence of a 

scintilla of evidence in support of the plaintiff's position will be insufficient” to withstand summary 

judgment. Anderson, 477 U.S. at 252; Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 613 

(6th Cir. 2013).

III. Discussion

A. Section 1983 Claims

1. Official Capacity

Under 42 U.S.C. § 1983, any person “under color of any statute, ordinance, regulation, 

custom, or usage” of a state that subjects another person to “the deprivation of any rights, privileges, 

or immunities” guaranteed by the Constitution and laws, shall be held liable to the party injured. 

Jones brings suit against the Franklin County Child Support Enforcement Agency and its agents 

Susan Brown and Melissa Waterfield in their official and individual capacities.

A suit against an individual in their official capacity is treated as a suit against the entity itself.

See Kentucky v. Graham, 473 U.S. 159, 166 (1985). A governmental entity may be held liable under 

§ 1983 “only when the entity itself is a ‘moving force’ behind the deprivation.” Id. (quoting Polk 

County v. Dodson, 454 U.S. 312, 326, (1981)). Thus, the entity’s “‘policy or custom’ must have 

played a part in the violation of federal law.” Id. (quoting Monell v. New York City Dept. of Social 

Services, 436 U.S. 658, 694 (1978)).

With respect to the malicious prosecution claim, Jones has not demonstrated the existence

of a policy or custom of the Agency that was a moving force behind the institution of the grand jury 

proceeding. Rather, Jones alleges only that in his case the defendants supplied false or incomplete 

information to the grand jury. This allegation does not link the alleged wrongdoing to an official

policy or custom of the Agency as required by Monell.

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Jones argues that Brown, as director, was the final authority and alleges that she made a 

decision to fabricate evidence presented to the grand jury. Municipal liability may lie “for a single 

decision by municipal policy makers” under limited circumstances. Pembaur v. Cincinnati, 475 U.S. 

469, 483 (1986). “A single decision can constitute a policy, if that decision is made by an official 

who ‘possesses final authority to establish municipal policy with respect to the action ordered,’ 

which means that his decisions are ‘final and unreviewable and are not constrained by the official 

policies of superior officials.’” Flagg v. City of Detroit, 715 F.3d 165, 174-75 (6th Cir. 2013) 

(quoting Pembaur, 475 U.S. at 480–81, and Miller v. Calhoun Cnty., 408 F.3d 803, 814 (6th Cir. 

2005)). However, the court finds that Jones’s allegation regarding Brown is unavailing. Not only 

was no such allegation made in the complaint, but Jones has failed to produce any evidence of a 

decision or directive by Brown to fabricate the evidence that was presented to the grand jury.

The § 1983 claim for conspiracy to maliciously prosecute is also deficient. Jones alleges that 

the Franklin County defendants conspired with Lucas County officials and his ex-wife to provide 

false information to the grand jury. These allegations are speculative and Jones has failed to put 

forth any evidence from which a jury could find that the defendants, pursuant to a policy or custom, 

conspired to maliciously prosecute him.

2. Individual Capacity

In order to succeed on a § 1983 claim of malicious prosecution, the plaintiff must establish 

that (1) the defendant participated in the decision to prosecute the plaintiff; (2) probable cause did 

not support the institution of legal process; (3) the plaintiff suffered a deprivation of liberty in 

addition to the initial seizure as a result of the legal proceeding; and (4) the legal proceeding 

terminated in the plaintiff’s favor. See Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010).

Jones has failed to establish that the criminal non-support proceeding was instituted without 

probable cause. “Ordinarily, the existence of an indictment would preclude a malicious prosecution 

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claim.” Young v. Owens, __ Fed. App’x __, 2014 WL 3973789, at *5 (6th Cir. Aug. 15, 2014) (citing 

Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006); Higgason v. Stephens, 288 F.3d 868, 877 (6th 

Cir. 2002)). In order to overcome the presumption of probable cause that a grand jury indictment 

carries, a plaintiff must demonstrate that the return of the indictment was the result of false 

testimony or some other significant irregularity. See Young, 2014 WL 3973789, at *5; Harris v. U.S., 

422 F.3d 322, 327 (6th Cir. 2005); Hinchman v. Moore, 312 F.3d 198, 202–03 (6th Cir. 2002).

Jones makes conclusory allegations that defendants fabricated evidence and failed to disclose 

material information to the prosecutor or grand jury. In his response to the motion for summary 

judgment, Jones fails to present any evidence supporting his allegations. The only potential 

irregularity identified by Jones is his allegation that the arrearage was for his adult children, for 

whom his child support obligation had been terminated. But this allegation is contradicted by the

face of the indictment. The indictment charged Jones with failing to make child support payments

for a period of two years leading up to his youngest child’s eighteenth birthday. Though the child 

became an adult by the time Jones was indicted, the charged violation concerned payments that were 

due while the child was a minor. See O.R.C. § 2919.21 (non-support of dependents). The court

thus finds that Jones has failed to demonstrate that the non-support proceeding was instituted 

without probable cause and finds that he cannot sustain his § 1983 claim of malicious prosecution.

The individual capacity claim for conspiracy to maliciously prosecute likewise fails. A civil 

conspiracy under § 1983 is “an agreement between two or more persons to injure another by 

unlawful action.” Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). In order to succeed on a 

civil conspiracy claim, the plaintiff must put forth evidence that the defendants acted in concert 

under a single plan. Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003). Jones has not 

provided any evidence that would support a finding that Waterfield and Jones acted in concert with 

Lucas County officials or his ex-wife to maliciously prosecute him.

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B. State Law Claims

Jones also brings claims for abuse of process, conspiracy and intentional infliction of 

emotional distress. These claims arise from the same set of facts alleged regarding the malicious 

prosecution claim.

Defendants correctly argue that they are immune from liability as to the state law claims. 

Ohio law shields a political subdivision from civil liability for the acts or omissions of the political 

subdivision and its employees in connection with a governmental function. O.R.C. § 2744.02(A)(1); 

Sudnik v. Crimi, 117 Ohio App.3d 394, 398-99, 690 N.E.2d 925, 922-28 (Ohio Ct. App. 1997). The 

definition of a “political subdivision” includes a county and its agencies. O.R.C. § 2744.01(F). In 

Ohio, “[e]ach county shall have a child support enforcement agency.” O.R.C. § 3125.10; see also

Walker v. Jefferson Cnty., No. 02JE14, 2003 WL 21505472, at **4-5 (Ohio Ct. App. June 25, 2003) 

(applying immunity under § 2744.02(A)(1) to a county child support enforcement agency). An 

employee of a political subdivision is immune in his individual capacity for acts or omissions that 

take place within the scope of his employment. O.R.C. § 2744.03(A)(6); Blankenship v. Enright, 67 

Ohio App.3d 303, 312-13, 586 N.E.2d 1176, 1181-82 (Ohio Ct. App. 1990).

The allegations against the defendants relate directly to the performance of a governmental 

function. Under Ohio law, “[e]ach child support enforcement agency shall be responsible in the 

county it serves for the enforcement of support orders and shall perform all administrative duties 

related to the enforcement of any support order.” O.R.C. § 3125.11. Among the means by which 

an agency enforces a support order is to “refer a case to the county prosecutor for possible criminal 

non-support action under section 2919.21 of the Revised Code.” O.A.C. § 5101:12-50-50(C)(9).

None of the statutory exceptions to immunity apply here. The exceptions to political 

subdivision immunity are narrow and plainly do not apply. See O.R.C. § 2744.02(B)(1)-(5) (negligent 

operation of motor vehicle; negligent failure to repair public roads; physical defect in public 

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building). With respect to the exceptions to immunity for an employee in his individual capacity, the 

only one which potentially applies is for acts or omissions committed “with malicious purpose, in 

bad faith, or in a wanton or reckless manner.” O.R.C. § 2744.03(A)(6)(b). The complaint contains 

general allegations that the conduct of defendants was “extreme,” “malicious,” and motivated by 

“evil.” Compl., ¶¶ 15, 30, 35. However, Jones has not submitted any evidence in support of his

allegations, and the court thus finds that defendants are entitled to immunity under O.R.C. § 2744

against the state law claims.

IV. Conclusion

Accordingly, the Franklin County defendants’ motion for summary judgment (doc. 35) is 

granted. The Clerk of Court shall enter final judgment. 

s/ James L. Graham 

JAMES L. GRAHAM

United States District Judge

DATE: September 15, 2014

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